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THE  SERVICE  OF  LAWYERS  IN  WAR- 
TIME AND  THEIR  OBLIGATION 
TO  PROMOTE  AMERICANISM 


ADDRESS   BY 

THE  HONORABLE  WM.  W.  MORROW 

JUDGE  OP  THE 

UNITED  STATES  CIRCUIT  COURT  OP  APPEALS 

AT    THE 

Annual  Session  op  the  Calipornia  Bar  Association  at 
San  Jose,  Calipornia,  June  7th,  1918. 


^^  U  1  y  ?  w  *  ;   • 


1918 

Rkcorder  Printing  and  Publishing  Company 

689   Stevenson   Street,    San   Francisco 


V 


A" 


The  Service  of  Lawyers  in  Wartime  and 

Their  ObHgation  to  Promote 

Americanism 


ADDRESS  BY  THE  HONORABLE  WM.  W.  MORROW, 
JUDGE  OF  THE  UNITED  STATES  CIRCUIT  COURT 
OF  APPEALS  FOR  THE  NINTH  JUDICIAL  CIRCUIT, 
AT  SAN  JOSE,  ON  FRIDAY,  JUNE  7TH,  1918. 


Mr.  Chairman,  ladies  and  gentlemen :  I  wish  to  express 
at  the  outset  my  thanks  for  the  very  kind  invitation  ex- 
tended to  me  to  attend  this  session  of  the  California  Bar 
Association.  I  have  found  it  a  very  pleasant  and  interest- 
ing session  and  the  discussion  of  the  legal  subjects  has 
certainly  been  most  instructive.  I  desire,  also,  to  thank 
the  committee  for  having  waived  any  obligation  or  duty 
on  my  part  to  bring  with  me  a  prepared  address.  Perhaps 
when  I  have  concluded  what  I  have  to  say  you  will  not 
have  for  the  committee  the  same  kindly  feeling  I  have  for 
it  on  that  account.  But  let  me  say,  if  you  will  forgive  the 
committee  and  kindly  and  patiently  bear  with  me,  I  will 
promise  that  if  any  of  you  have  a  case  before  the  United 
States  Circuit  Court  of  Appeals  during  the  coming  year, 
and  for  any  reason  you  do  not  come  before  us  with  a 
carefully  prepared  brief,  if  you  will  produce  a  certificate 
of  membership  in  the  State  Bar  Association  and  show  that 
you  were  present  on  this  occasion,  I  will  see  to  it  that  your 
case  is  decided  on  the  merits. 

The  Lawyers'  War  Services. 

It  occurred  to  me  after  I  had  received  and  accepted  the 
invitation  to  be  Avith  you,  that  I  ought  to  have  at  least 
some  general  idea  of  what  I  would  say,  and  so  I  concluded 
that  for  the  short  time  I  am  to  detain  j^ou  I  would  speak 
upon  the  subject  of  the  services  that  are  being  rendered 
the  government  by  the  lawyers  during  this  present  war. 
My  impulse  to  talk  upon  that  subject  arose  partly  from  the 
fact  that  I  had  come  in  contact  with  such  services,  in  one 

[3] 


380879 


1    ',     i  ">  ■.'  '    » 

'■•'•••^'^  '     ■  ■■  ■      -  [4] 

way  or  another,  in  different  departments  of  war  serviees, 
and  it  seemed  to  me  that  I  might  very  properly  speak  upon 
that  subject  as  an  impartial  observer  and  without  having 
to  laboriously  hunt  through  the  books  for  authorities  to 
support  my  conclusions. 

I  was  at  first  quite  pleased  with  this  selection  of  a 
subject  and  the  attractive  ease  it  promised,  until  last 
Wednesday  evening,  when  I  attended  a  meeting  of  the 
San  Francisco  Bar  Association  and  listened  to  a  verv 
entertaining,  able  and  eloquent  address  by  Judge  Lindley 
upon  this  identical  subject,  and  as  it  was  treated  by  the 
Judge  in  a  way  so  entertainingly  and  so  much  superior  to 
anything  I  could  say  or  even  attempt  to  say,  I  thought  for 
a  while  I  M^ould  have  to  turn  to  some  other  theme  and 
avoid  the  obvious  contrast.  But  after  reflection  it  occurred 
to  me  that  Judge  Lindley  had  spoken  from  a  standpoint 
of  an  actual  worker,  a  patriotic  and  earnest  worker,  as  the 
legal  adviser  of  a  department  of  the  government  at  Wash- 
ington, and  that  his  point  of  view  or  angle  of  observation 
was  from  the  top  downward,  whereas  mine  was  from  the 
bottom  upward,  that  is  to  say,  from  the  place  where  the 
serviees  are  being  rendered  by  the  lawyers  in  the  various 
local  communities  in  aid  of  the  national  administration  at 
Washington,  and  that  the  subject  might  have  some  interest 
from  that  point  of  view.  1  have  accordingly  determined  to 
talk  to  you  upon  that  subject  and  I  shall  also  appeal  to 
you  for  a  still  further,  and  I  think  an  equally  patriotic, 
service. 

The  Selective  Draft. 

Now,  in  order  that  you  may  understand  the  particular 
point  of  view  to  which  I  am  directing  your  attention,  let 
me  say  that  when  the  President  of  the  United  States,  under 
the  Act  of  May,  1917,  called  for  the  services  of  members  of 
the  legal  profession  to  aid  those  who  were  to  be  called  into 
the  service  by  the  Selective  Draft,  he  did  so  that,  while  the 
law  was  being  administered  summarily,  it  might  be  ad- 
ministered wisely,  and  justly,  as  well  as  promptly,  and  in 
such  a  way  as  to  enable  those  selected  to  respond  intelli- 
gently and  without  delay  to  the  call  of  their  country.  The 
call  made  by  the  President  was  almost  a  command :  "I 
urge  men  of  the  legal  profession,"  he  said,  "to  offer  them- 
selves as  associate  members  of  the  Legal  Advisory  Board 


[5] 

to  be  provided  in  each  community  for  the  purpose  of 
advising  registrants  of  their  rights  and  obligations  and  of 
assisting  them  in  the  preparation  of  their  answers  to  the 
questions  which  all  men  subject  to  draft  are  required  to 
s-ubmit."  In  response  to  that  invitation,  or  call,  the 
lawyers  all  over  the  country,  in  California,  as  well  as  else- 
where, responded  freely  and  voluntarily  to  the  government 
in  aid  of  the  registrants  in  making  out  their  returns. 

It  was  a  splendid  program  and  a  patriotic  service,  not 
only  for  the  men  selected,  but  for  the  government  in  a 
great  and  unparalleled  emergency. 

Now,  you  gentlemen  know  that  the  Selective  Draft 
raised  a  great  many  important  and  delicate  questions  con- 
cerning exemptions  and  liabilities  under  the  law.  These 
questions  had  to  be  passed  upon  first  by  the  Local  Boards 
and  then  in  some  cases  by  the  District  Board  of  Appeals, 
then,  if  for  any  reason,  the  individual  was  dissatisfied  with 
this  final  decision  and  believed  he  had  been  unjustly  treated 
by  the  Boards,  he  came  to  the  Federal  Court,  not  by  an 
appeal  from  the  decision  of  the  Appellate  Board,  for  the 
decision  of  the  Appellate  Board  was  made  final  by  law,  but 
upon  a  writ  of  habeas  corpus,  and  this  right  of  a  final 
adjudication  by  a  Federal  Court  was  declared  by  a  decision 
of  the  Supreme  Court,  rather  curiously  in  a  Chinese  case 
(Chin  Yow,  208  U.  S.  8),  where  the  Supreme  Court  deter- 
mined that  a  person  claiming  a  substantial  right  before 
an  executive  board  or  officer  and  a  fair  hearing  is  denied 
may  appeal  to  the  courts,  notwithstanding  the  law  provides 
that  the  decision  of  the  board  or  officer  is  final. 

Mr.  Justice  Holmes,  in  his  remarkably  succinct  way  of 
expressing  the  opinion  of  the  Supreme  Court,  said,  in 
substance,  in  the  case  referred  to:  "The  decision  of  the 
department  is  final,  but  that  is  upon  the  presupposition 
that  the  decision  was  after  a  hearing  in  good  faith,  and  as 
between  the  substantive  right  of  a  citizen  to  prove  his 
right  on  the  one  side  and  the  conclusiveness  of  a  decision 
of  an  officer  or  board  on  the  other,  one  or  the  other  must 
give  way  and  something  must  be  done  and  it  naturally  falls 
to  the  courts  to  do  it." 

Now,  under  this  decision  a  number  of  cases  were 
brought  before  the  Federal  Courts  on  writs  of  habeas 
corpus  in  this  state  and  elsewhere,  on  the  claim  that  a  full 


and  fair  hearing  had  been  denied  to  the  individual,  but 
after  a  careful  investigation,  we  found  that  in  not  a  single 
case  had  such  hearing  been  denied,  that  is  to  say,  the 
Appellate  Boards  had  been  so  well  advised  by  the  Lgeal 
Advisory  Boards  that  no  arbitrary  ruling  appears  to  have 
been  made  or  injustice  done  in  a  single  case,  and  this  was 
largely,  if  not  wholly  due  to  the  careful  advice  given  by 
the  lawyers  of  the  Legal  Advisory  Boards,  who  rendered 
such  services  freely  and  voluntarily.  This  was  certainly 
so  in  this  jurisdiction  and,  judging  from  the  advance  sheets 
of  the  decisions  in  other  jurisdictions,  it  was  so  all  over 
the  United  States. 

The  Liberty  Loans. 

The  lawyers  were  also  called  into  the  service  of  the 
government  in  promoting  the  Liberty  Loan  drives  and  with 
these  services  in  this  state  I  was  somewhat  familiar.  I 
undertook  some  work  in  that  line  myself  and  everywhere 
I  found  the  lawyers,  particularly  the  young  lawyers,  were 
rendering  able  and  efficient  service.  Their  legal  training 
gave  them  the  skill  in  presenting  the  claim  of  the  govern- 
ment in  the  strongest  possible  light  and,  let  me  add,  in  the 
briefest  possible  way,  and  results  show  that  their  appeals 
M'^ent  hom.e  to  the  people  in  every  community,  drawing 
therefrom  their  accumulated  savings  to  support  the  war. 

The  American  Red  Cross. 

Then  there  was  the  American  Red  Cross  with  its  appeal 
for  a  generous  support  and  patriotic  services  from  all 
classes.  This  call  Avas  also  responded  to  by  the  lawyers, 
whether  young  and  enthusiastic,  like  some  of  you,  or 
advanced  in  years,  but  determined  to  see  it  through,  like 
some  of  the  rest  of  us,  and  the  result  of  this  appeal  for 
stricken  humanity  has  surprised  us  all  and  astounded  the 
world. 

The  Lawyers  at  the  Front. 

Then  there  are  the  lawyers  who  have  gone  directly  to 
the  front  and  into  the  trenches.  They  are  numerous,  we  all 
know  many  and  they  are  known  in  every  community  for 
their  bravery  and  their  enthusiasm  to  serve  their  country 
in  the  cause  of  freedom  and  against  a  vicious,  savage  and 
monstrous  autocracy.     Now,  this  is  a  fine  record   for  the 


[7} 

legal  profession  to  make,  and  being  somewhat  familiar 
with  all  these  splendid  services,  I  thought  I  might  come 
here  and  say  a  few  words  in  their  behalf,  and  under  the 
general  theme  of  patriotism  pay  a  deserved  tribute  to  those 
of  our  class  who  have  responded  to  that  call,  but  before 
doing  so,  it  seemed  prudent  for  me  to  be  sure  that  I  was 
not  overestimating  the  extent  of  such  services,  for  you 
know  the  profession  has  not  escaped  serious  criticism.  It 
has  been  said  that  as  a  class  lawyers  are  selfish;  that  they 
are  more  concerned  about  their  own  personal  interests  than 
the  general  welfare ;  that  they  only  accept  public  employ- 
ment when  it  promises  better  returns  than  the  private 
service,  and  that  their  patriotism  is  generally  measured  by 
some  sort  of  sordid  considerations.  In  other  words,  the 
charge  is  that  when  they  support  a  cause  it  is  for  the  fees 
or  other  rewards  there  are  in  it. 

The  Tribute   Paid  the  Lawyers  by  the  Provost   Marshal 
General  in  the  Selective  Draft. 

It  was,  therefore,  with  some  concern  that  I  cast  about 
for  substantial  evidence  as  to  the  real  status  of  the  lawyers 
in  this  great  conflict.  In  pursuit  of  this  evidence,  I  first 
applied  to  General  Crowder,  whom  I  have  known  during 
the  past  twenty  years  in  a  personal  as  well  as  in  an  official 
way.  I  asked  him  by  telegram  what  services,  if  any,  the 
lawyers  of  the  country  were  rendering  the  government  in 
this  war.  The  question  permitted  a  general  reply  that 
the  lawyers,  like  all  other  classes,  were  rendering  full  and 
faithful  service  to  the  government.  But  a  reply  came  and 
it  went  so  fully  and  fairly  into  all  of  the  details  of  the 
service  that  I  thought  I  ought  to  submit  it  to  you  for  your 
information  and  in  justification  of  my  confidence  in  the 
l)rofession. 

This  is  General  Crowder 's  reply: 

"Replying  to  your  telegram  concerning  services  of  law- 
yers to  the  nation  in  this  emergency,  I  submit  the  follow- 
ing: More  than  three  thousand  lawyers  of  high  standing, 
whose  incomes  exceed  by  many  times  the  compensation 
allowed,  have  tendered  their  services  to  me  as  Judge 
Advocate  General.  I  have  been  able  up  to  this  time  to 
avail  myself  of  the  services  of  one  hundred  and  fifty  com- 
missioned  in   the   Judge   Advocate   General's   Department, 


[8] 

some  of  whom  declined  to  accept  salaries.  Of  the  forty-six 
hundred  and  sixty-three  local  boards  and  one  hundred 
and  fifty  district  boards,  the  average  is  higher  than  one 
lawyer  on  each  board.  There  are  nearly  five  thousand 
Legal  Advisory  Boards,  each  consisting  of  three  permanent 
members,  a  personnel  of  nearly  fifteen  thousand.  Attached 
to  these  Legal  Advisory  Boards  are  associate  members 
aggregating  nearly  one  hundred  thousand  lawyers."  And 
remember,  gentlemen,  the  number  of  active  lawyers  in  the 
United  States  is  only  about  125,000.  General  Crowder, 
therefore,  states,  in  effect,  that  more  than  two-thirds  of 
the  lawyers  in  the  United  States  have  given  their  services 
to  the  government.  But  here  is  what  I  want  to  call  your 
particular  attention  to:  "I  do  not,"  says  General  Crowder, 
"hesitate  to  say  from  my  own  observation,  and  from 
reports  which  have  been  received  from  the  states,  that  the 
expeditious  classification  of  registrants  could  not  have  been 
accomplished  without  the  unstinted  aid  which  the  lawyers 
of  the  countr}^  rendered  through  the  medium  of  Legal 
Advisory  Boards. ' '  General  Crowder  goes  on  to  say :  "I 
(juote  briefiy  from  the  report  of  one  Governor,  rendered 
about  two  months  ago,  which  is  typical:  'The  valuable  aid 
and  services  rendered  to  both  the  War  Department  and  the 
registrants  by  the  State  Bar  Association  and  individual 
lawyers  cannot  be  passed  unnoticed.  Hundreds  of  organ- 
ized bureaus  where  registrants  could  have  their  question- 
naires filled  out,  receive  legal  and  other  aid  without  cost 
or  expense  to  registrants  or  to  the  government,  were 
maintained  by  competent  men,  and  every  registrant  was 
given  the  most  patient  and  courteous  consideration.'  " 

Now  listen  to  this  tribute  in  the  conclusion  of  General 
Crowder 's  telegram:  "I  cannot  find  language  sufficiently 
expressive  or  appreciative  of  the  value  which  the  lawyers, 
as  individuals  and  through  their  organizations,  have  ren- 
dered and  are  still  rendering." 

What  Grovernor  James  K.  Lynch  Has  to  Say  About  the 
Lawyers  in  the  Liberty  Loan  Drives. 

Now,  what  is  the  evidence  as  to  the  services  of  the 
lawyers  in  the  Liberty  Loan  drives?  I  have  the  pleasure 
of  knowing  Governor  Lynch  of  the  Federal  Reserve  Board 
of  this  district,  and  I  asked  him  what  services,  if  any,  the 


.[9] 

lawyers  had  rendered  the  government  in  the  Liberty  Loan 
drives.  His  reply  was:  "They  rendered  splendid  services 
all  over  the  districts  and  it  was  real,  substantial  service, 
rendered  voluntarily  and  freely,  giving  their  time  and 
knowledge  without  compensation,  and  they  travelled  at 
their  own  expense  throughout  the  state."  I  said:  "Do  you 
mind  saying  so  to  me  in  a  letter  I  can  read  to  the  Bar 
Association?"  He  said:  "I  will  do  that  with  pleasure."- 
And  I  am  now  going  to  read  to  you  a  letter  that  I  received 
from  Governor  Lynch  about  the  services  of  the  lawyers  in 
the  way  of  assisting  in  placing  the  Liberty  Loans  before 
the  people : 

' '  I  hear  that  you  are  going  to  address  the  Bar  Association 
upon  the  share  taken  by  the  attorneys  of  the  country  in 
placing  the  Liberty  Loans  of  the  United  States. 

"From  my  personal  experience,  I  can  say  that  they  did 
most  effective  work  and  were  one  of  the  really  important 
factors  in  placing  the  loans.  Not  only  did  they  contribute 
largely  from  their  own  means,  but  they  gave  liberally  of 
their  time,  and,  through  their  influence,  were  a  most  im- 
portant factor  in  forming  public  sentiment  and  in  awaken- 
ing the  country  to  its  danger  and  to  the  need  of  sub- 
scribing. 

"In  connection  with  the  campaign  for  public  speaking 
they  naturally  took  the  lead  and  in  every  community  gave 
untiringly  of  their  time  and  strength,  Mr.  Allen  Chicker- 
ing,  chairman  of  the  speakers'  committee,  has  given  a  large 
portion  of  his  time  for  more  than  a  year  to  this  work,  and 
as  he  has  enlisted  for  the  duration  of  the  war,  there  is  no 
telling  when  he  will  be  discharged. 

"It  is  needless  to  say  that  all  this  work  of  the  legal 
profession  was  entirely  without  compensation  of  any  kind, 
and  forms  a  splendid  contribution  to  the  service  of  the 
government." 

What  the  Governor  of  the  State  Has  to  Say  About  the 
Lawyers  in  the  Selective  Draft. 

The  Governor  of  the  state  has,  of  course,  jurisdiction 
and  charge  over  the  Selective  Draft  in  the  state,  and  I 
accordingly  applied  to  him  for  information  upon  the  sub- 
ject, and  mind  you,  in  all  these  instances  I  have  never  iti 
terms  solicited  a  complimentary  report,  but  have  simply 
asked:    "What  have  you  to  say  as  to  the  services  of  the 


[  10] 

lawyers  of  the  state  in  support  of  these  war  measures?" 
and  I  may  say  that  one  of  the  reasons  I  had  for  asking  this 
question  was  because  I  had  heard  it  said  that  the  lawyers 
were  not  doing  their  duty ;  that  they  Avere  not  serving 
their  country  as  they  should ;  but  instead  they  were  still 
presenting  trivial  technicalities  in  courts  delaying  the  ad- 
ministration of  justice,  as  they  have  always  done,  and  that 
as  a  class  they  were  obstructive  rather  than  constructive  in 
a  great  national  cause.  I  had  heard  this  over  and  over 
again  and  I  was  very  much  interested  in  finding  out 
whether,  in  a  situation  like  the  present,  with  the  whole 
country  aroused  and  alive  to  the  perils  that  are  now 
menacing  the  cause  of  law  and  liberty,  the  lawyers  were 
doing  their  duty  and  serving  their  country  faithfully  and 
fearlessly,  or  whether  they  were  standing  back,  and  relying 
upon  some  trivial  and  selfish  excuse  for  a  lack  of  interest  in 
the  national  cause.  And  here  is  what  the  Governor  said  in 
his  letter : 

"Replying  to  your  inquiry,  I  am  glad  to  have  an  oppor- 
tunity to  express  my  appreciation  of  what  the  lawyers  have 
done  in  California  in  connection  with  the  execution  of  the 
Selective  Service  Law, 

"In  every  county  of  the  state  a  Legal  Advisory  Board 
has  been  created.  These  consist  of  a  Judge  of  the  Superior 
Court  and  two  lawyers.  These  boards  were  chosen  by  a 
committee  appointed  by  myself  at  the  suggestion  of  the 
Provost  Marshal  General,  consisting  of  Attorney-General 
•Webb,  Oscar  C.  Mueller,  the  president  of  the  State  Bar 
Association,  A.  E.  Bolton,  and  Chas,  S.  Gushing.  Mr.  Frank 
Short  and  Isador  Dockweiler  were  also  designated  on  the 
committee.  All  of  these  gentlemen  were  named  at  the 
suggestion  of  the  Provost  Marshal  General  on  account  of 
their  connection,  either  present  or  past,  with  state  or 
national  bar  associations.  Each  Legal  Advisory  Board  in 
turn,  appointed  a  board  larger  in  number  to  render  services 
to  the  various  local  exemption  boards,  the  plan  being  that 
each  local  exemption  board  should  have  in  constant  session 
a  board  of  lawyers,  versed  in  the  Selective  Service  Law, 
ready  to  give  advice  to  registrants  in  the  filling  out  of 
their  questionnaires.  There  are  125  local  boards  in  the 
state.  That  would  mean  that  there  were  at  least  625 
lawyers  throughout  the  state  who  were  ready  at  all  times 
to  render  free  service  to  the  drafted  men,    I  feel  that  their 


[11] 

work  has  been  of  the  greatest  benefit  to  the  nation  in  the 
successful  execution  of  the  draft  act. 

"There  has  been  attached  to  each  local  board  through- 
out the  state  a  lawyer  as  government  appeal  agent,  whose 
duty  has  been  to  carry  appeals  on  decisions  of  the  local 
boards  to  the  district  boards,  these  appeals  being  in  behalf 
of  the  government.  To  these  men  has  fallen  the  duty  of 
investigating  all  cases  called  to  their  attention  wherein  the 
decision  of  the  local  board  is  alleged  to  have  been  improper. 
They  have  also  been  obliged  in  many  instances,  and  par- 
ticularly in  the  first  draft,  to  advise  registrants  as  to  their 
rights  and  their  liabilities.  Their  services  have  been  en- 
tirely gratuitous  and  they  have  in  many  instances  been 
forced  to  resist  the  importunities  of  their  own  clients. 
I  feel  that  their  services  have  also  been  of  the  greatest 
benefit. 

"In  addition  to  these  men  there  is  a  lawyer  on  each  of 
the  five  district  exemption  boards,  and  on  many,  if  not  the 
greater  portion  of  the  local  boards,  lawyers  have  beer- 
appointed.  The  duties  that  have  been  imposed  on  these 
boards  by  the  government  have  been  so  -many  and  so 
arduous  that  the  members  thereof  have  sacrificed  much  of 
their  private  affairs,  and  I  know  from  personal  knowledge 
that  the  lawyers  on  these  boards  have  devoted  themselves 
to  that  work  to  the  detriment  of  their  own  practice. 

"In  short,  I  feel  that  the  state  of  California  is  very 
greatly  indebted  to  the  work  which  the  lawyers  have  done 
and  are  doing  and  as  Governor  of  the  state  I  feel  that  we 
ought  to  give  them  the  highest  praise.  I  am  very  glad  of 
this  opportunity  to  express  through  you  my  personal  appre- 
ciation of  the  work  they  have  done." 

The  Lawyers  in  the  American  Red  Cross  Service. 

I  have  already  mentioned  the  services  rendered  by  the 
lawyers  in  the  American  Red  Cross  organization.  As  an 
officer  of  the  national  organization  and  familiar  with  the 
work,  I  can  testify  to  their  enthusiasm  and  their  skill  and 
judgment  in  organizing  and  maintaining  the  Red  Cross 
drives  that  we  have  had  in  this  state,  and  in  carrying 
forward  the  work  here  and  in  Europe.  Much  of  the  suc- 
cess— unparalleled  success — in  the  Red  Cross  work  is  due 
to  their  services. 

You  can  very  well  understand,  gentlemen,  that  I  have 


[12] 

been  very  proud  of  this  evidence  in  behalf  of  the  legal 
profession  in  this  state.  Judge  Lindley  was  called  to  Wash- 
ington. He  has  rendered  splendid  services  to  the  govern- 
ment in  a  high  office.  Others  specially  qualified  have  been 
called  to  responsible  stations,  and  if  we  had  nothing  else 
to  our  credit,  we  could  very  properly  say  that  the  laAvyers 
of  California  have  given  to  the  government  services  that 
speak  well  for  the  profession  and  for  the  loyalty  of  the 
whole  state,  but  here  is  a  record  that  speaks  for  the  entire 
profession  in  every  community  of  the  state  in  terms  of  the 
highest  praise. 

The  Call  for  Still  Further  Services. 

Now,  we  must  keep  this  splendid  service  up  to  a  full 
measure  of  efficiency.  The  lawyers  must  continue  to  be  the 
right  arm  of  the  government  in  all  this  war  work,  but  I 
am  going  to  present  to  you  the  call  for  a  still  further 
service.  I  am  going  to  ask  you  to  consider  what  further 
duty  you  owe  to  the  form  of  government  under  which  we 
live.  We  have  reached  the  point  where  we  must  know,  and 
know  with  certainty,  whether  the  people  of  the  United 
States  are  or  are  not  Americans  in  spirit  as  well  as  in 
name.  We  have  reached  a  point  where  we  must  know 
whether  the  lawyers  are  willing  to  support  law  and  order 
and  in  the  administration  of  justice  maintain  the  consti- 
tutional principles  of  an  organized  government. 

I  am  going  to  appeal  to  you  to  go  back  to  your  several 
communities  and  let  them  know  that  you  have  assumed  and 
taken  upon  yourselves  an  obligation  to  further  support  the 
government,  not  only  in  its  war  measures,  but  in  maintain- 
ing a  constitutional  form  of  government  pledged  to  the 
administration  of  law  and  order.  Say  to  them  that  it  is 
proposed  to  "Americanize  America"  and  make  it  "safe  for 
an  active,  intelligent  and  efficient  democracy." 

The  President  a  Constitutional  Dictator. 

It  was  said  yesterday  that  the  President  of  the  Uiiited 
States  was  a  dictator.  Professor  McMurray,  who  said  it, 
explained  last  evening  that  he  did  not  mean  anything  in 
disparagement  of  the  President  or  his  administration.  I 
was  very  glad  to  hear  him  say  so,  because  I  believe  the 
President  of  the  United  States,  in  his  war  measures,  has 
acted  in  accordance  with  his  constitutional   authority,   and 


[13] 

if  he  is  a  dictator  he  is  a  constitutional  dictator,  that  is  to 
say,  a  dictator  within  the  authority  of  law  and  the  Constitu- 
tion of  the  United  States.  But  we  want  to  be  careful  not 
to  set  up  any  other  dictator,  and  particularly  one  not  au- 
thorized by  law. 

The  United  States  a  Representative  Democracy. 

Now,  I  am  going  to  call  your  attention  to  a  feature  of 
our  form  of  government  worth  while  remembering,  and  I 
want  you  to  pay  attention  to  this,  as  it  has  relation  to  the 
service  I  am  going  to  ask  of  you  for  the  future.  The  gov- 
ernment of  the  United  States  has  two  fundamental  prin- 
ciples involved  in  its  essential  form.  First,  it  establishes  a 
republic  as  a  representative  democracy,  defined  by  Presi- 
dent Lincoln,  as  was  said  a  moment  ago,  as  a  "government 
of  the  people,  by  the  people,  and  for  the  people."  It  sets 
up,  as  is  well  known,  three  different  well  balanced  depart- 
ments of  government — legislative,  executive  and  judicial — 
for  the  administration  of  its  affairs.  These  departments  are 
given  the  necessary  power  for  the  co-ordination  and 
efficient  administration  of  the  government  as  a  sovereign 
nation.  Several  of  these  powers  might  be  enumerated  as 
important  in  the  present  state  of  affairs,  but  only  one  need 
be  mentioned  now  as  particularly  important  in  this  present 
emergency,  viz. :  the  power  to  make  war.  Our  Consti- 
tution, as  Mr.  Justice  Hughes  says,  is  a  "fighting  (Jonsti- 
tutiou."  It  gives  Congress  the  power  to  declare  war,  to 
raise  and  support  armies,  to  provide  and  maintain  a  navy, 
and  to  make  rules  for  the  government  and  regulation  of  the 
land  and  naval  forces  of  the  United  States.  The  President 
is  made  Commander-in-Chief  of  the  army  and  navy. 
Congress  has  authority  to  make  all  laws  necessary  and 
proper  for  carrying  those  powers  into  execution. 

For  what  purpose  were  all  these  powers  conferred  upon 
the  government?  Was  it  that  in  a  war  for  our  own 
liberty  and  in  defense  of  our  own  rights,  we  might  be 
defeated?  Manifestly  not.  No  such  limited  power  would 
be  nor  has  been  given.  The  power  to  make  war  was  con- 
ferred upon  the  government  in  order  that  it  might  carry  on 
a  war  successfully,  not  unsuccessfully,  and  that  is  what  we 
are  engaged  in  doing  now.  We  are  in  a  war  and  we  are 
going  to  continue  to  be  in  the  war  until  we  secure  a  com- 
plete victory  over  our  enemy.     You  will  find  if  you  look 


[14] 

over  the  Constitution  of  the  United  States  and  read  it  care- 
fully, paragraph  by  paragraph,  and  one  section  with 
another,  that  it  means  this :  that  there  is  ample  authority 
for  declaring  that  every  dollar  of  money  and  every  ounce 
of  man  power  that  the  people  of  the  United  States  have  or 
can  command,  are  to  be  thrown  into  this  war  for  the  pur- 
pose of  winning  a  complete  and  lasting  victory  for  us  and 
for  our  posterity.  This  is  what  the  President  of  the  United 
States  is  doing  and  what  he  has  called  upon  us  to  help 
him  to  do  in  accordance  with  constitutional  law.  Some  few 
have  said  that  we  have  gone  outside  of  the  law  and  dis- 
regarded the  rights  of  individuals  and  the  Constitution  has 
been  thrown  to  the  winds.  Not  a  bit  of  it.  Our  Consti- 
tution is  not  a  "scrap  of  paper"  to  be  thrown  to  one  side  on 
any  account  or  for  any  purpose.  It  is  a  Constitution  to 
be  enforced  maintaining  the  liberties  of  the  people  in  our 
domestic  as  well  as  in  our  foreign  relations. 

A  Government  Formed  to  Protect  Individual  Rights. 

I  said  that  we  had  one  particular,  essential  fundamental 
element  in  our  form  of  government,  viz. :  the  form  of  a 
republic,  as  a  representative  democracy.  And  now,  sec- 
ondly, the  Constitution  secures  certain  rights  and  immuni- 
ties designed  to  adjust  and  balance  the  governmental  power 
of  the  republic  with  personal  liberty.  That  is  what  the 
Constitution  is  for.  It  has  just  these  two  propositions: 
First,  it  forms  a  republic,  and  next,  it  provides  for  the 
protection  of  the  people  under  that  government  in  their 
individual  rights.  That  is  what  the  government  of  the 
United  States  was  organized  for,  and  you  can  reduce  it  all 
into  a  very  small  compass.  These  are  the  essential  ele- 
ments. And  what  I  want  to  see  is  that  the  people  of  the 
United  States,  the  j^oung  men,  the  native  born  as  well  as 
the  foreign  born,  thoroughly  understand  what  these  essen- 
tial principles  of  the  Constitution  are.  Let  me  illustrate 
what  I  mean.  In  the  proceedings  relating  to  the  naturaliza- 
tion of  aliens,  one  of  the  inquires  which  the  law  provides 
shall  be  asked  of  the  applicant  is  this :  Is  he  attached  to 
the  principles  of  the  Constitution  of  the  United  States? 
And  he  must  prove  that  fact  to  the  satisfaction  of  the  court, 
and  to  do  so  he  must  bring  two  witnesses  to  court  who 
shall  make  oath  that  they  have  known  the  applicant  for 
at    least    five    years    and    that    during    that    time    he    has 


[15] 

behaved  as  a  man  of  good  moral  character,  and  that,  from 
what  they  know  of  him,  they  believe  him  to  be  attached  to 
the  principles  of  the  Constitution  and  well  disposed  to  the 
peace  and  good  order  of  the  same.  For  the  purpose  of 
ascertaining  whether  the  applicant  was  intelligently 
attached  to  the  principles  of  the  Constitution,  I  have  asked 
this  question:  "To  what  principles  of  the  Constitution  of 
the  United  States  are  you  attached?"  There  have  not  been 
very  many  intelligent  answers  to  that  question.  Some  have 
said  they  came  here  to  better  their  condition ;  that  they 
wanted  to  secure  better  wages.  In  fact,  they  have  given 
all  sorts  of  answers,  but  there  was  one  answer  made  to  this 
question  that  I  thought  was  very  intelligent,  although 
quite  unexpected.  I  asked  the  applicant:  "Tell  me  why 
are  j^ou  attached  to  the  principles  of  the  Constitution  of 
the  United  States,  and  to  what  particular  principles  of  the 
Constitution  of  the  United  States  are  3^ou  attached?" 
After  some  hesitation  he  said :  ' '  Woodrow  Wilson  is 
President  of  the  United  States."  That  produced  some 
amusement  in  the  courtroom.  The  audience  seemed  to 
think  this  an  amusing  answer  to  make  in  defining  a  prin- 
ciple of  the  Constitution  to  Avhich  the  applicant  was  at- 
tached, but  it  was,  in  fact,  a  correct  answer,  as  far  as  it 
went,  and  why?  Because  Woodrow  Wilson  was  elected 
President  of  the  United  States  by  the  people  under  the 
provisions  of  the  Constitution.  He  had  not  become  Presi- 
dent or  a  ruler  because  his  father  was  either  a  king  or 
a  kaiser,  and  this  was  undoubtedly  what  the  applicant 
meant. 

Now,  what  I  would  like  to  see  is  this :  I  would  like  to 
see  every  person  who  comes  to  the  court  as  an  applicant 
for  citizenship  to  be  able  to  say  what  the  essential  prin- 
ciples of  the  Constitution  of  the  United  States  are  and  why 
he  is  attached  to  them,  and  I  would  like  to  see  our  native 
born  young  men  who  come  to  be  registered  as  voters,  to 
be  able  to  state  in  the  same  way  and  to  the  same  effect 
the  essential  principles  of  the  Constitution  of  the  United 
States  and  why  they  are  attached  to  them.  Why  not? 
Are  they  not  the  most  important  elements  in  an  education 
that  any  young  man  can  have?  And  ought  we  not  all  to 
be  so  educated?  You  know,  we  expect  all  our  young  men, 
especially  since  Judge  Short's  address,  to  be  familiar  with 
the  Ten  Commandments.     And  while  we  honor  these  Com- 


[16] 

mandments,  and  many  of  us  have  been  required  to  commit 
them  to  memory,  as  the  fundamental  law  of  mankind,  we 
ought  to  be  able  to  name  with  equal  fluency  and  intelli- 
gence the  essential  principles  of  the  Constitution  of  the 
United  States.  We  ought  to  be  able  to  enumerate  these  as 
we  do  the  Ten  Commandments  or  the  Lord's  Prayer  or 
the  Litany  of  the  church  to  which  we  belong  or  any  of 
those  other  great  inspiring  moral  principles  that  constitute 
the  frame  work  of  Christian  civilization. 

If  an  American  citizen,  whether  native  born  or  natural- 
ized, is  asked :  ' '  What  are  the  principles  of  our  form  of 
government  to  which  you  are  attached?''  he  ought  to  be 
able  to  stand  up  and  with  ready  voice  and  memory  state 
them  something  like  this: 

"I  am  attached  to  the  principles  of  the  Constitution  of 
the  United  States  because  it  establishes  a  representative 
democratic  form  of  government  and  because  it  secures  to 
the  citizen  certain  rights  and  immunities  consistent  with 
the  administration  of  that  form  of  government  and  in  the 
interest  of  personal  liberty  and  justice  and  because  it  pro- 
vides specifically  for  all  time  a  bill  of  personal  rights  that : 

"No  law  shall  be  made  by  Congress  prohibiting  the  free 
exercise  of  religion,  or  abridging  the  freedom  of  speech  or 
of  the  press.  The  privilege  of  the  writ  of  habeas  corpus 
shall  not  be  suspended,  except  in  case  of  rebellion  or 
invasion.  No  bill  of  attainder  or  ex  post  facto  law  shall 
be  passed.  The  right  of  the  people  to  be  secure  in  their 
persons,  houses,  papers  and  effects,  against  unreasonable 
searches  and  seizures,  shall  not  be  violated.  No  person  shall  ■ 
be  subject  for  the  same  offense  to  be  twice  put  in  jeopardy  of 
life  or  limb;  nor  be  compelled  in  any  criminal  case  to  be  a 
witness  against  himself.  In  all  criminal  prosecutions,  the 
accused  shall  enjoy  the  right  to  a  speed.y  and  public  trial, 
by  an  impartial  jury  of  the  state  and  district  wherein  the 
crime  shall  have  been  committed,  and  to  be  informed  of  the 
nature  and  cause  of  the  accusation,  to  be  confronted  with 
the  witnesses  against  him,  to  have  compulsory  process  for 
obtaining  witnesses  in  his  favor,  and  to  have  assistance  of 
counsel  for  his  defense.  Excessive  bail  shall  not  be  re- 
quired, nnr  excessive  bonds  imposed,  nor  cruel  or  unusual 
punishment  inflicted.  No  person  shall  be  deprived  of  life, 
liberty  or  property  without  due  process  of  law,  nor  be  denied 


[17] 

the  equal  protection  of  the  law,  nor  shall  private  property  be 
taken  for  public  use  without  just  compensation. 

These  are  the  great  principles  of  government  that  the 
Anglo-Saxon  race  has  secured  after  more  than  600  years  of 
struggle  and  we  ought  to  be  as  familiar  with  them  in  all 
their  form  and  significance  as  we  are  with  the  names  of 
the  days  of  the  week  or  the  month. 

The  Americanization  of  America. 

This  is  the  call  I  submit  to  you :  An  organization  is 
about  to  be  formed  in  this  country  for  the  purpose  of 
maintaining  these  essential  principles  of  government.  It 
is  proposed  to  "Americanize  America."  We  have  come  to 
realize  the  absolute  necessity  of  everybody,  whether  young 
or  old,  naturalized  or  native  born,  understanding  distinctly 
what  they  mean  when  they  declare  themselves  in  favor 
of  the  constitutional  form  of  government  under  which  they 
live,  and  their  full  measure  of  loyalt}^  when  they  say  they 
reverence  the  flag  and  wall  follow  it  in  the  service  of  the 
country  wherever  it  may  lead.  They  should  know  what 
that  means  in  the  cause  of  civilization,  and  what  it  means 
to  have  our  soldiers  in  France  bravely  upholding  the  prin- 
ciples of  international  law,  and  what  it  means  to  have 
courts  of  justice  at  home  enforcing  our  own  domestic  laws. 

The  question  is  often  asked:  "What  should  the  localj 
state  and  national  bar  associations  do  to  make  such  organ- 
izations efficient  and  popular  with  the  members  of  the  bar 
and  at  the  same  time  command  the  respect  and  confidence 
of  the  public?"  My  ansAver  to  that  question  is:  "Make 
the  organizations  represent,  above  all  else,  the  true  Ameri- 
can spirit  and  devotion  to  the  great  principles  of  right  and 
justice."  That  is  what  our  soldiers  are  fighting  for  in 
France  today  and  when  we  say  we  must  do  everything  to 
win  the  w^ar,  we  must  understand  what  it  means  to  win 
the  war.  Does  it  not  mean  in  the  final  analysis  that  there 
must  be  obedience  to  the  law  and  punishment  for  the  out- 
law ?  Does  it  not  mean  that  we  are  in  this  war  to  save  a 
civilization  based  upon  the  eternal  principles  of  right  and 
justice?  And  if  we  are  in  the  war  for  that  purpose  iii 
dealing  with  other  nations,  it  is  equally  important  that  we 
should  have  that  purpose  firmly  established  and  always  in 
view  in  dealing  with  ourselves. 


[18] 

You  have  heard  these  great  principles  of  right  and 
justice  stated  by  the  speakers  who  have  addressed  you  at 
this  meeting  and  particularly  by  the  president  of  the 
American  Bar  Association  this  morning.  We  were  all 
delighted  with  that  address.  Coming  from  Philadelphia, 
it  came  with  the  ring  of  the  old  Constitution  and  its 
guarantees  for  civil  liberty  and  the  protection  of  individual 
rights.  I  regret  I  did  not  hear  Judge  Short's  address 
yesterday,  but  the  press  comment  shows  that  he  was,  as 
usual,  historical  and  eloquent,  as  he  was  forceful  and  inter- 
esting in  dealing  with  this  subject. 

Now,  what  have  we  learned  from  all  this  discussion"? 
Is  it  not  that  if  the  world  is  to  be  saved  from  an  over- 
powering militarism  on  the  one  hand,  or  crushing  anarchy 
on  the  other,  it  must  be  done  with  a  vision  broad  enough 
to  include  the  rights  of  the  individual  whether  at  home  or 
abroad?  There  must  be  an  aroused  American  spirit 
resolved  that  America  must  be  Americanized  so  that  we 
shall  all  understand  the  true  value  and  purpose  of  citizen- 
ship and  be  prepared  to  discharge  its  duties  in  maintaining 
the  principles  of  free  government.  In  this  cause  I  am  sure 
the  lawyers  will  be  as  loyal  and  true  in  the  future  as  they 
have  been  in  the  past,  and  that  they  will  be  among  the 
leaders  in  giving  the  public  will  a  true,  consistent  and 
patriotic  direction. 


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